Complainant is Citrix Systems, Inc. of Bedford, Massachusetts United States of America, represented by Burns & Levinson LLP, United States of America.
Respondent is Domains by Proxy, LLC of Scottsdale, Arizona, United States of America / Sirishareddy Idamakanti - Sirisha Idamaknti of New Jersey, United States of America. 2. The Domain Names and Registrar
The disputed domain names and are registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2015. On January 7, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On January 8, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on January 20, 2015, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on January 30, 2015.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 5, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was February 25, 2015. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 3, 2015.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on March 12, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
Complainant is a leader in the development, manufacture and distribution of remote access, collaborative tools, virtual desktop solutions and infrastructure systems, which allow enterprises to monitor and optimize remote access to applications for remote desktop management. Citrix partners with over 10,000 companies in more than 100 countries.
Complainant is the owner and has used the trademarks CITRIX since at least as early as 1990. Since at least 2002, Complainant has used the mark XEN and XENAPP as a standalone mark and in combination with Complainant’s CITRIX mark as CITRIX XENAPP. Complainant owns applications and registrations in over 50 countries. Other UDRP decisions have found that CITRIX is a famous mark. See, e.g., Citrix Systems, Inc. v WhoisProtectS ProtectiveService, Ltd./Alexandr golounin, WIPO Case No. D2014-0250.
Respondent registered on January 3, 2013, and registered on April 2, 2011.
On November 18, 2014, Complainant sent a cease and desist letter to the Registrant of the disputed domain names demanding transfer these to Complainant. Complainant did not receive a reply.
The disputed domain name resolves to a parked website. The disputed domain name currently resolves to a website that indicates it is under construction. However, before the cease and desist letter, the cite resolved to a site that purported to offer a variety of software and information technology services. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has rights in the CITRIX and XENAPP trademarks. It contends that the disputed domain names are confusingly similar to Complainant’s marks because it consists of Complainant’s CITRIX and XENAPP marks in their entirety, and that the only difference between Complainant’s marks and the disputed domain names are the addition of common words “technologies” and “solutions.” Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain names, and that it registered and uses the disputed domain names in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
To satisfy Paragraph 4(a)(i) of the Policy, Complainant must show that the disputed domain names are identical or confusingly similar to trademarks in which Complainant has rights.
As set forth above, Complainant owns various trademark registrations for the CITRIX and XENAPP marks. The disputed domain names are confusingly similar to Complainant’s marks. They contain Complainant’s CITRIX and XENAPP marks in their entirety. The only difference between Complainant’s CITRIX mark and the disputed domain name is the addition of the common word “technologies”. The only difference between Complainant’s XENAPP mark and the disputed domain name is the addition of the common word “solutions.” Numerous previous WIPO decisions have held that the addition of a common word does not distinguish a disputed domain name from complainant’s mark or preclude a finding of confusing similarity. See, e.g., Walmart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662.
Accordingly, the Panel finds that Complainant has rights in the CITRIX and XENAPP marks and that the disputed domain names are confusingly similar to Complainant’s marks. Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP panels have found it sufficient for a complainant to make a prima facie showing of its assertion where there has been no response.
Complainant has exclusive rights in the CITRIX and XENAPP marks and has not authorized Respondent to register and use the disputed domain names. Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the CITRIX and XENAPP marks. Respondent is not known under the mark. Respondent has made no showing that it has any legitimate interest in using the domain name or a bona fide offering of goods or services under the mark. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name.
The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence in the record is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain names, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) of the Policy states that:
“for the purposes of paragraph 4(a)(iii), “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location, shall be evidence of the registration and use of a domain name in bad faith”. Registration in Bad Faith
It is difficult to conceive that Respondent did not know of Complainant’s marks and products when Respondent registered the disputed domain names. As set forth above, Complainant’s products are protected by various United States and international trademark registrations for CITRIX and XENAPP in over 50 countries, and constitute famous marks. Complainant has used the CITRIX mark since at least 1990, and the XENAPP mark since at least 2002. All of this occurred before Respondent registered on January 3, 2013, and on April 2, 2011. Additionally, under 15 USC §1072, United States registration of Complainant’s marks constitutes constructive notice of the marks. Respondent therefore had legal, if not actual, notice of Complainant’s mark prior to registering the disputed domain names.
Based on these facts and the circumstances of this case, this Panel infers that Respondent was aware or must have been aware of Complainant’s mark when Respondent registered the disputed domain names, and therefore registered them in bad faith. See, e.g., Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574, in which the panel found it “inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant’s rights and interests”. Use in Bad Faith
It is clear that Respondent has used the domain names in bad faith, as Respondent has intentionally attempted to attract, for commercial gain, Internet users to its websites by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent, which is evidence of the registration and use of the domain names in bad faith.
The disputed domain name currently reverts to inactive web pages. Passive holding of a domain name may constitute use in bad faith. Telstra Corporation Limited v Nuclear Marshmallows, WIPO Case No. D2000-0003. Additionally, prior to Complainant sending the cease and desist letter, the disputed domain name resolved to a site that purported to offer a variety of software and information technology services, thus actively attempting to attract Internet users for commercial gain.
Additionally, Complainant sent Respondent a cease and desist letter on November 18, 2014, to which Respondent never responded. Respondent therefore was specifically made aware of Complainant’s rights in the CITRIX and XENAPP marks and Complainant’s demand that it transfer the disputed domain names to Complainant. A failure of a Respondent to respond to a cease and desist letter has been considered relevant in finding bad faith (see News Group Newspapers Limited and News Network Limited v. Momm Amed Ia,WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel,WIPO Case No. D2000-1598; and America Online, Inc. v. Antonio R. Diaz,WIPO Case No. D2000-1460).
This Panel therefore finds that Respondent has registered and is using the disputed domain names in bad faith under the third element of paragraph 4(a) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names, and be transferred to Complainant.
Sandra A. Sellers
Sole Panelist
Date: March 26, 2015
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